As public attention turns to the National Assembly, negotiations about a Khmer Rouge
tribunal continue behind the scenes between the UN and the Cambodian government.
Minister of the Council of Ministers and head of the government's tribunal task force,
Sok An, and UN Undersecretary-General Hans Corell have repeatedly been in contact,
both by phone and by letter, since Corell's negotiating team left on March 22
Analysts and observers point out that this is one of the most important results of
the UN delegation's visit March 16-22 - the positive revival of the talks, which
only a few weeks ago seemed practically doomed. And although only one of the UN's
four main concerns was resolved during the negotiations, the parties agreed upon
numerous smaller issues and finally had an opportunity to spell our their positions
clearly face-to-face: where there is room for compromise, and where there is not.
Corell's team arrived at the negotiating table with four main points to be worked
out, all relating to control over who the tribunal will prosecute and convict:
ï The judges: The government wants a majority of Cambodian judges on the panel, whereas
the UN has argued for a majority of international judges. Also at stake is the question
of whether rulings should be obtained by supermajority.
ï The prosecutor: The government wants co-prosecution, with one foreign and one Cambodian
prosecutor who indict in unanimity. The UN is NOT opposed to co-prosecution, but
wants assurances that the international prosecutor can make indictments independently.
The same applies to the question of the proposed co-investigating judges.
ï Amnesties: The UN wants to ensure that no previously granted amnesties can prevent
prosecution. This applies specifically to former KR foreign minister Ieng Sary who
was pardoned after his defection in 1996. Also, there should be no future possibility
of pardoning those who are convicted. The current draft only states that the government
cannot grant amnesty but doesn't rule out a royal pardon by King Sihanouk.
ï Arrests: The UN wants the government to guarantee that it will arrest all suspects
in connection with the tribunal.
Of those four points, only the question of guaranteeing arrests was agreed upon.
According to a government source present at the negotiating table, the judges, the
prosecution, and the amnesties are "still up for debate."
On the question of the amnesties, the government wants to stick to "what is
already in the law," the source said.
However, a compromise may be in the making on the question of judges and prosecution.
One Phnom Penh diplomat suggested that the UN may be willing to accept a majority
of Cambodian judges and rulings by supermajority if the independence of the co-prosecution's
foreign lawyer is ensured.
In connection with a possible compromise, the procedures of appointment of both Cambodian
and foreign judges and prosecutors may also play a role.
But no less important to the outcome of the talks are the many minor issues agreed
upon at the negotiating table, such as who will provide and pay for the physical
facilities of the tribunal. Also, the parties had a long debate on questions of witness
protection programs and the provisions for the defence.
As these mattered were cleared, the core issues were laid bare, leaving room for
more goal-directed and less muddled negotiations. And according to inside reports,
Corell clearly spelled out to his Cambodian counterparts what amount of independent
control will make the tribunal acceptable to the UN.
"The Corell mission was probably successful in making clear what the bottom
line was. The Cambodian mind always seems bent on finding compromise, and it may
have been difficult for Phnom Penh to accept that there is no room for compromise
here - that basic principles of justice are not negotiable. If this is now clear
in everyone's mind, that is an important step forward," says one diplomatic
source.
Generally, all agree that although the talks didn't produce a final agreement, they
were a big step forward.
"I think this is the most successful type of working together that we have seen
between the government and the UN for a long time," says the diplomat.
Much of the improved climate of negotiation seems to be related directly to Corell
himself. Compared to the previous UN delegation, led by Assistant Secretary-General
for Legal Affairs Ralph Zacklin in August last year, Corell applied a much more expressive
and also compassionate tone. Furthermore, the delegation's visit to the Cheung Ek
Killing Fields was appreciated by the Cambodian side as a thoughtful move.
"Everybody was much more at ease this time. They were more familiar with the
subject and had had more time to think about what they were doing. It also had a
lot to do with the tone of Corell. He was not as reserved and businesslike as Zacklin,"
says one participant at the negotiations.
Another important factor was the language of the negotiations. During Zacklin's visit,
the meetings were held in English only. This time, the negotiations were interpreted
into both English and Khmer. This, of course, meant that the talks took longer.
Contrary to media reports, the government did not break off the negotiations. Whereas
Corell had suggested to reporters outside the meeting room that his delegation was
prepared to stay on until all matters were resolved, this proposition was not formally
put to the Cambodian delegation until the last day of the talks.
At the time, Sok An turned down the offer on the grounds that he had meetings scheduled
with the World Bank, who had already been waiting for him for a week.
The next step in the public negotiations will be a summit of developing nations in
Cuba on April 12, where UN Secretary-General Kofi Annan and Prime Minister Hun Sen
are likely to meet.
Apart from that, both parties are now awaiting the result of the National Assembly
debate on the tribunal draft law, which will take place on April 19. The Assembly's
Legislative Committee is currently reviewing the draft law, and committee chairman
Mohn Sophan is reluctant to speculate on the outcome of the debate.
"I don't know if the Assembly will make amendments to the law in accordance
with the UN demands. The UN has to deal directly with the government and we are waiting
to hear from the government on this issue," Sophan says.
The committee has not yet looked at the matters of judges and prosecution, but Sophan
says that "we will come to that soon."
However, the draft law does not have to incorporate all the matters of a future agreement
between the UN and the Cambodian government, as long as it doesn't explicitly prevent
or prohibit elements like an independent international prosecutor.
Shortly before leaving the country, Corell stated that he would "probably"
be coming back to Cambodia. And analysts and observers are sounding a cautiously
upbeat note for the first time in the months-long tribunal debate.
"We are right on the verge of a deal. If the Cambodians decide that they want
the legitimation that UN participation would bring, they can have it very quickly,"
says Cambodia expert and genocide researcher Craig Etcheson.
The diplomatic source points to the significance of the 25th anniversary of the Khmer
Rouge takeover on April 17, two days before the National Assembly debate.
"You cannot discount the possibility that some magnanimous gesture will be made
by that date. Remember that this may not only be about who blinks first, but also
about who gets most credit for statesmanship, for contributing to reconciliation,"
the source says.
"That person will go down in the history books - especially if it is done at
the time when journalists are descending on the region to write their retrospectives.
The world is watching."
